Research › Search › Judgment

J&K High Court · body

2014 DIGILAW 248 (JK)

Union of India v. Gh. Qadir Gojree

2014-06-11

MOHAMMAD YAQOOB MIR

body2014
1. Instant appeal is directed against the award passed by the Commissioner under Workmen's Compensation Act, 1923, whereunder respondent-Ghulam Qadir Gojree, has been held entitled to the amount of Rs.4,42,740/- and also the interest in terms of Section 4-A of the Act @ 12% per annum amounting to Rs. 336452/-, in total Rs.779192/-. 2. Proviso 3rd sub-section (1) of Section 30 provides that the appeal shall not lie unless memorandum of appeal is accompanied by a certificate issued by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against. 3. Admittedly, on the presentation of the appeal requisite certificate was not annexed. Since the appeal was preferred after prescribed period of limitation, the application for condoning the delay was filed which along with CMP No.106/2014, seeking permission to deposit the entire awarded amount, has been disposed of on 26.03.2014, where-under delay has been condoned subject to deposit of entire awarded amount within three weeks. In compliance whereof, awarded amount i.e. Rs.7,79,192/- is shown to have been deposited. 4. According to learned counsel for the appellant, respondent no.1 was not entitled to any compensation on three grounds: First, the brother of the deceased Mr. Rajwali working as Porter with the Army died on 4.4.2007 whereas the claim petition was filed on 26.05.2011, which is barred by limitation; Second, the Porter does not fall within the ambit of employee, and: Third, the income of the deceased has been taken as Rs.300/- per day based on that his monthly income has been taken as Rs.9000/- when it is impracticable rather impossible for a labourer to work on daily basis for all the 30 days a month. Such income has to be taken only for 25 days in view of the law laid down by the Apex court in the judgment rendered in case Josphine James v. United India Insurance Co. Ltd. & anr. reported in 2013 Legal Eagle(SC) 545. 5. Admitted position, as emerge from the records, is that the deceased died while working as Porter with the Army on 04.04.2007 when he was only 22 years of age. He was earning Rs.300/ per day, monthly that would amount to Rs.9000. In case submission of learned counsel for the appellant is accepted that he may work only for 25 days, still his monthly income would be Rs.7500. He was earning Rs.300/ per day, monthly that would amount to Rs.9000. In case submission of learned counsel for the appellant is accepted that he may work only for 25 days, still his monthly income would be Rs.7500. In both cases, be it Rs.9000/ or Rs.7500, monthly wages of the deceased are to be taken as Rs.4000, as envisaged by Explanation-II to sub-section (1)(a)(b) of Section 4 of the Act as it existed and was applicable in the year 2007. Now in view of amendment in the year 2009, same Explanation-II stand omitted. The relevant factor in view of the deceased having died at the age of 22 years has to be 221.37 as per Schedule IV of the Workmen's Compensation Act. 6. During the course of arguments learned counsel for the parties reached to a consensus so as to give quietus to the litigation and agreed to settle the dispute by taking monthly wages of the deceased as Rs.7500/ and grant of simple interest @9% per annum. 7. In view of the consensus reached, the amount of compensation payable shall be as follows: 1. Wages of deceased to be taken as Rs.7500/- but for calculation of the compensation, in view of Explanation-II to clauses (a)(b) to sub-section(1) of Section 4 of the Act, as it existed in the year 2007 i.e. prior to its amendment in the year 2009, is to be taken as Rs.4000. In terms of clause (a) of sub-section(1) of Section 4, 50% of the monthly wages has to be multiplied by the relevant factor, so 50% of Rs.4000/ in view of Explanation-II for the purposes of Clause (a)=2000. 2. The relevant factor for multiplication is 221.37. 3. The amount of compensation is worked as 2000 x 221.37 = 442740. 4. The amount of compensation fell due on the date of death of the deceased i.e. 04.04.2007. Simple interest in terms of Section 4-A of the Act is awardable after one month from the date it fell due which means from 04.05.2007 interest has to be paid. 5. The amount of award along with interest has been deposited on 26.03.2014 which means the awarded amount of Rs.442740 has remained to be deposited from the date it fell due i.e. for a period of seven years. The interest chargeable @9% per annum is worked out as: 442740 x 9/100 x 7 = 2,78,926. 6. 5. The amount of award along with interest has been deposited on 26.03.2014 which means the awarded amount of Rs.442740 has remained to be deposited from the date it fell due i.e. for a period of seven years. The interest chargeable @9% per annum is worked out as: 442740 x 9/100 x 7 = 2,78,926. 6. The total amount including interest payable up to 26.03.2014 is worked out as: 7,21,666. 8. Out of deposited amount of Rs.7,79,192, the worked amount of Rs.7,21,666/ shall be released in favour of the claimant- Ghulam Qadir Gojree along with interest as may have accrued thereon if deposited in the Bank. The balance amount i.e.7,79,192-7,21,666=57,526, shall be refunded to the appellants along with interest as may have accrued thereon if deposited in the Bank. 9. Copy of the order be sent to the Commissioner under Workmen's Compensation Act, 1923, for information. 10. Disposed of as above along with connected CMP.